恢复性司法在生态环境刑罚中的定位重构

The positioning and reconstruction of restorative justice in ecological environment penalty

传统刑事法律对生态环境犯罪的规制仅以“自由刑+罚金刑”的模式对犯罪行为人进行惩罚,却对受损的生态环境本身缺乏关注。生态环境保护的迫切需求使得恢复性司法被引入生态环境犯罪领域并得到广泛应用,它应用的理论基础包括:符合刑罚轻缓化与刑罚人道主义的发展趋势;新型环境正义观的要求;理念与生态环境刑罚的目的相契合。但恢复性司法在中国刑罚中的定位一直处于争议,主要有刑罚种类说、量刑情节说、非刑罚处罚措施说等学说。应该将恢复性措施定位为法院在量刑时的轻缓化事由,并将恢复性措施纳入社区矫正方案予以执行,以此保障受损生态环境得到有效修复。

The regulation of ecological environment crime in traditional criminal law only has punished the perpetrator in the mode of“free punishment+fine punishment”,but has paied little attention to the damaged ecological environment.The urgent need of eco-environmental protection has made restorative justice introduced into the field of ecological environment crime and widely used.The theoretical basis of its application include that:it conforms to the development trend of penalty mitigation and penalty humanitarianism;it is the requirement of the new concept of environmental justice;its concept is consistent with the purpose of ecological environmental penalty.However,the position of restorative justice in China’s criminal law has been in dispute,mainly including the theory of penalty types,sentencing circumstances,non penalty measures and so on.Restorative measures should be positioned as the cause of mitigation when the court is sentencing,and the restorative measures should be incorporated into the community correction program for implementation,so as to ensure the effective repair of the damaged ecological environment.